Businesses Beware: Gift Card Season Comes With New Risk
Labor & Employment Alert 11/22/19 Kelly Lyon Davis
As retailers enter the busy holiday season that often involves increased gift card sales, there is a new risk from the cottage industry of lawyers and disabled plaintiffs filing lawsuits under Title III of the Americans With Disabilities Act (the “ADA”). In the last 30 days, a wave of class action lawsuits have been filed, primarily in New York, in which blind plaintiffs allege they are being denied equal enjoyment of places of public accommodation because gift cards in those places of accommodation lack Braille embossments.
The plaintiffs claim because the gift cards lack Braille, they are not fully accessible to and independently usable by blind and visually impaired individuals. And as such, they state that the defendants are denying blind and visually impaired customers full and equal access to the products and services of the business. The plaintiffs also claim, without any studies or expert opinions, that adding Braille with the name of the merchant and the initial value of the gift card is “simple and inexpensive.”
The Law is Not Developed
These “gift card” lawsuits are in their initial stages and, to date, have not resulted in any rulings determining whether the plaintiffs’ claims have merit. There is no explicit provision of the ADA addressing the requirements for gift cards. To get certainty on this question, it will require some businesses to defend the claims on the merits, testing a number of possible procedural and substantive defenses. Whether any will be willing to engage in the fight as opposed to seeking an early resolution of the claims remains to be seen.
As more and more commerce shifts online, businesses may consider eliminating this risk by no longer issuing gift cards in physical form and instead opting for electronic gift cards only. Of course, given the ADA website litigation that has affected many businesses over the last few years, this option would only reduce risk to the extent the company’s website and electronic gift cards are accessible and compatible with screen reader software.
Of course, if adding Braille to the gift cards is as “simple and inexpensive” as plaintiffs claim, businesses can consider doing so in order to eliminate claims in this area. But businesses should consider whether the packaging and any inserts with terms and conditions or other information should also be altered to be equally accessible to blind and low vision consumers.
If your business receives a lawsuit or demand from a law firm related to ADA accessibility, whether regarding gift cards, your website, or whatever the next litigation trend may be, or if you have any questions about the ADA in general, please contact your local Quarles & Brady attorney or:
- Kelly Lyon Davis: (239) 659-5066 / [email protected]